A,B,C, D and Norwegian Organization for Asylum Seekers (NOAS) v. The Immigration Appeals Board
Supreme Court of Norway
21 December 2012
Article 3: Best interests of the Child
Article 12: The child’s opinion
European Convention on Human Rights, Article 8: Right to private and family life
General Comment No 5 (2003): General Measures of Implementation of the CRC
General Comment No 12 (2009): The right of the Child to be Heard
Section 38, Immigration Act: In cases concerning children, special weight must be given to the connection the child has acquired with Norway.
The case was brought by a family of four. A and B had come to Norway from Bosnia and Herzegovina in 2003. While their asylum application was being processed, their first daughter – C – was born later that year. Their second daughter – D – was also born in Norway in 2012. Their asylum application was refused and so were their appeals against the refusal. In 2006, the Ministry of Labour and Social Inclusion had instructed the Directorate of Immigration and the Immigration Appeals Board to suspend cases in which children had applied for asylum and who would have a total period of stay in Norway of three years or more, including cases where the application had been refused with final effect. The reason behind this order was that the Ministry was working on an amendment of the Immigration Regulations to the effect that special importance should be attached to children’s connection with the realm, acquired through a long period of residence, in the general assessment of whether or not to grant a residence permit. However, after those amendments came into force, the Immigration Appeals Board reviewed the family’s application again and refused to grant asylum anew, this time having taken into account the duration of the child’s stay in the country. The applicants appealed the refusal to all instances until reaching the Supreme Court in the present case. Before the Supreme Court, they argued that the authorities had not made a satisfactory assessment of C’s connection with Norway and that the refusal is in violation of their right to respect for family and private life under Article 8 of the European Convention on Human Rights (ECHR) as well as the principle of the best interests principle in Article 3 of the Convention on the Rights of the Child (CRC). In addition, it was argued that the child’s views had not been heard as required under Article 12 CRC.
Issue and resolution:
Best interests of the child. Whether the refusal to grant asylum was lawful and in compliance with the rights of the child to have her best interests taken into account, her right to be heard and her right to respect for private and family life. The Court ruled that there had been no violation of the Immigration Act in conjunction with Article 3 CRC as the best interests of the child had been properly assessed, balanced against other considerations and accorded the weight of a primary consideration as required. Neither was there a breach of Article 12 CRC nor Article 8 ECHR. Furthermore, the majority of judges held that it is not possible under Norwegian law to grant a declaratory judgement for a breach of a provision of the CRC because the Convention did not contain an explicit obligation to provide an effective remedy for breaches.
According to the Board for Immigration, C had built a connection with Norway as she attended nursery and school and speaks Norwegian, however, the immigration policy considerations had greater weight in the current assessment, therefore, no permit should be granted. The Court agreed with the Board’s assessment and the argument that the best interests principle does not mean that immigration policy considerations and other considerations cannot be relevant and decisive.
In relation to Article 12, it was held that there was no basis for assuming that the decision would have been a different one if the child had been heard and, in any case, the child’s interests have been safeguarded by the family’s lawyer. Justice Bårdsen disagreed, stating that Article 12 must be applied regardless of whether the authorities think the child has little to contribute.
The Court was divided on the question whether a declaratory judgement was an available remedy in relation to an alleged breach of the CRC. The majority concurred with Justice Matningsdal’s opinion according to under Norwegian law there is no obligation to provide a declaratory judgement for a breach of Article 3 CRC. While other treaties, such as the ECHR and ICCPR, contain an explicit right to an effective remedy for breaches of the rights, the CRC does not.
Justices Bårdsen, however, disagreed with the majority holding that the CRC is directly applicable and in his view the removal constituted a violation of Article 3. Justice Matheson also stated that a declaratory judgement is available, however, he thought there had been no violation of the best interests principle.
As regards the alleged violation of the ECHR, the majority held there had been no violation. As the family was removed jointly, this is not a question of whether the removal infringes the right to respect for C’s “family life”. The question is whether or not her right to “respect for her private life” was infringed because her habitual life and her connection with Norway were disrupted as a result of her removal. Since C’s stay is not long enough to consider her a settled migrant and there are no exceptional circumstances present to find a violation of private life, the interference with her private life was justified. Justice Bårdsen, however, noted that if the Court had found a violation of Article 3 CRC, then that would automatically trigger a violation of Article 8 ECHR because the interference with the right would not have been in accordance with the law.
Excerpts citing CRC and other relevant human rights instruments:
(42) I would mention that both section 38 subsection 3 of the Immigration Act and section 8-5 of the Immigration Regulations implement article 3 (1) of the UN Convention on the Rights of the Child, which reads as follows:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
(43) Moreover, I would mention that the Act must be applied in accordance with “international provisions by which Norway is bound when these are intended to strengthen the position of the individual”, also pursuant to section 3 of the Immigration Act.
(50) The Board then continues:
“Pursuant to article 3 (1) of the CRC, the best interests of the child must be a primary consideration in all actions concerning children. However, that the best interests of the child must be an important consideration does not mean that immigration policy considerations and other considerations cannot be relevant and decisive.”
(57) The appellants have pointed out that it follows from article 12 of the CRC and section 17-3 of the Immigration Regulations that C should have been heard and that it constitutes a procedural error that she was not given an opportunity to state her views directly to the Board. As I have already pointed out, it must clearly be assumed that in its overall assessment pursuant to section 38 subsection 3, see subsection 1, of the Immigration Act in conjunction with article 3 of the CRC, the Immigration Appeals Board’s starting point was that it would be in C’s best interests to continue to live in Norway and to maintain the connection she had established. There is no basis for assuming that the decision would have been a different one if the child had been heard. I would add that the child’s interests have been safeguarded by the family’s lawyer.
(88) Can a declaratory judgment be given to the effect that the removal of C infringes article 3 of the CRC?
(89) In my opinion, no right to a declaratory judgment for breach of article 3 of the CRC can be inferred from our international obligations. The question will therefore be whether it follows from section 1-3 of the Dispute Act that a declaratory judgment may be requested for such a violation. Under subsection (1) of this section, the assumption is that a “legal claim” must exist, and under subsection (2), there must be a “genuine need” to have the claim decided. It will therefore be natural to examine the preparatory works of section 1-3 of the Dispute Act and the conclusions drawn from them in practice and theory.
(91) By Act of 1 August 2003 no. 86, the Convention on the Rights of the Child was included in section 2 of the Human Rights Act. It thereby became directly applicable as Norwegian law, so that in the event of conflict, the Convention takes precedence over any other Norwegian legislation; see section 3 of the Act. Ot.prp. [Proposition to the Odelsting] no. 45 (2002-2003) contains statements about the significance of the fact that the CRC is placed on a par with the two above-mentioned Conventions. The following is stated on page 25:
“The incorporation of the Convention on the Rights of the Child is the method of incorporation that will have the strongest signal effect both nationally and internationally. By incorporating the CRC, the Norwegian authorities clearly show that Norway takes the Convention seriously and that we fulfil, formally speaking, the Convention’s requirements. This can be an advantage to Norway in its international human rights work directed at children. It will be easier to make requirements of other states when we ourselves have incorporated the Convention, thereby making it directly applicable in Norwegian law. By incorporating the CRC, Norway also follows up the special appeal that was made by the Committee on the Rights of the Child on this point.
By incorporating the CRC, we will also safeguard the need for an all-embracing presentation of children’s rights in Norwegian law. It will be easier to read the provisions in their proper context, and the Act will provide a more consistent overview of the rights of children. Furthermore, the incorporation of the Convention will have the result that the CRC will in itself appear to be a form of “catalogue of rights” in Norwegian law…”
(92) It is underlined on the same page that by being incorporated, the Convention will also be brought “into line with the human rights conventions that have already been incorporated”.
(93) Furthermore, the quotes above make good sense even if the incorporation did not also have the procedural consequence that it will be possible to request a separate judgment for infringement of article 3 of the CRC. I cannot see that it can be assumed from the statement in the preparatory works concerning the general status of equality with other incorporated conventions that it should be possible to give a separate declaratory judgment also for breaches of the CRC, and in any case not for breaches of the principle in article 3. Also breaches of this Convention can be examined by a review of the validity of the relevant decision.
(94) In Rt-2003-301, the Supreme Court came to the conclusion that a declaratory judgment can be requested for infringement of the ECHR. However, this discussion was related to conventions that require an effective national remedy for implementation of the convention – which is the case for both the ECHR, see article 13, and the ICCPR, see article 2 paragraph 3; see in particular paragraphs 28 and 39 of the judgment.
(96) As pointed out above, the CRC had already been incorporated in the Human Rights Act at this point in time. However, unlike the ECHR and the ICCPR, the CRC does not require an effective remedy, nor is it mentioned in the Proposition in this connection.
(100) As shown by the judgment earlier today in case J 2012/688 (HR-2012-02398-P) and by my vote in the present case, I would add that it will not be decisive merely to state that a specific solution will be in the child’s best interests. I therefore find it difficult to see that this can involve any real “legal claim”, as the child’s best interests in article 3 of the CRC will be a central, but not necessarily decisive element in any overall assessment. Nor can I see that there is any “genuine need” for the courts to review this question separately.
(101) This review of the preparatory works does not give, as I have already underlined, any indications that the legislature aimed to allow a right to request a separate declaratory judgment for breaches of the CRC. Nor does this follow from jurisprudence, in my opinion. Therefore, I think that the most loyal conclusion would be to conclude that the question of a breach of the CRC must be reviewed in accordance with the general basic rule in Norwegian law, in which an assessment of legal issues is made in the grounds for judgment and forms part of the review of the subject-matter in dispute in the case. In this connection, it has also carried weight that it seems to be difficult to anticipate what consequences it would have if we were to allow – and then with a general scope – requests to be brought also for a separate declaratory judgment for breaches of article 3 of the CRC.
(102) My conclusion is consequently that the request for a declaratory judgment to the effect that the removal of C was in breach of article 3 of the CRC must be dismissed.
(108) The decision is neither very concrete nor very informative when it comes to the circumstances surrounding C. It is an established fact that at no point in time was she given the opportunity to communicate her experience, her thoughts and feelings to the Immigration Appeals Board. I would here like to point to article 12 of the CRC on children’s right to be heard. This right applies regardless of whether the authorities assume that the child has little to contribute, cf. the General Comment no. 12 (2009) paragraphs 19 and 20 of the Committee on the Rights of the Child (OHCHR).
(112) I refer to my vote in case no. 2012/688 ( HR-2012-2398-P), where I emphasized that illegal stay and failure to cooperate in leaving the country may carry weight in the weighing of interests under article 3 (1) of the CRC, but that the solution that is in the best interests of long-term resident children with a strong connection with the realm can hardly be disregarded on the grounds that the child’s connection with Norway has been/is established by an illegal stay and because the parents have been passive and not cooperated in leaving the country. The Immigration Appeals Board’ basis has been the principle that “the immigration policy considerations are strongly present in a case such as the one at hand”, and has found “that these considerations must carry more weight in the overall assessment in this case”. This makes it uncertain whether the Board has relied on a correct standard of judgement. The rationale certainly creates considerable doubt as to the question whether C’s best interests have been treated as so primary a consideration as article 3 (1) of the CRC requires – whether this has been properly assessed and the conflicting interests duly weighed. The decision must accordingly be found invalid.
(115) The State has alleged that it is nevertheless not possible to obtain a judgment for violation of article 3 (1) of the CRC. It has been argued that the convention rule is an overall guideline that does not give grounds for immediate rights or obligations. The question whether article 3 (1) has been violated is, in the State’s opinion, not suited to be decided separately.
(116) The way I see it, this is partly a question as to whether the actual norm in article 3 (1) of the CRC imposes concrete obligations on the States parties to the individual child. This depends on an interpretation of the Convention and is normally referred to as a question whether the norm is “justiciable”.
(117) The CRC establishes “the Rights of the Child”. It follows from article 2 that the States “shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction”. Furthermore, article 4 first sentence establishes that the States “shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention”. In the Committee on the Rights of the Child’s General Comment no. 12 (2009) paragraph 18 it is emphasized that [t]he Convention recognizes the child as a subject for rights, and the nearly universal ratification of this international instrument by States parties emphasizes this status”. It is in my view beyond all doubt that the Convention aims at individual rights for the individual child.
(118) The wording in article 3 (1) is vague and general. This is not unusual in a human rights context. And the actual linguistic formulation naturally does not deprive the norm established on the basis of the wording of its nature of being legally binding for the State. This also goes for the fact that the norm indicates a balancing of conflicting considerations and interests. It should on this point be sufficient to refer to the fact that the question as to whether article 8 of the ECHR relating to the right to private and family life has been violated, amongst other things, depends on whether the measure was necessary and proportional.
(119) Article 3 (1) has a bearing on the interpretation of the other provisions of the Convention and on all national measures that concern children. It has common denominators with inter alia the general discrimination prohibition in article 2 and children’s general right to be heard in article 12. To me it seems rather strange why such general norms would not also be in the nature of Convention obligations to the individual child. Nor have I found any indications to the contrary in convention law sources. On the contrary, in the OHCHR’s General Comment no. 5 (2003) paragraph 6, it is stated that “it is clear that many other articles, including articles 2, 3, 6 and 12 of the Convention, contain elements which constitute civil/political rights”.
(120) Provided that article 3 (1) of the CRC imposes concrete obligations on the States parties to the individual child, the question is whether it is nevertheless necessary to make reservations for the possibility of judicial enforcement of these by the courts in Norway. This is normally referred to as a question as to whether the norm is “self-executive”, and depends on what position the Convention right has in Norwegian law.
(121) In the OHCHR’s General Comment no. 5 (2003) paragraph 19 it is stated that the Convention States’ general execution duty in article 4 entails that the Convention States “need to ensure, by all appropriate means, that the provisions of the Convention are given legal effect within their domestic legal system”. The committee further emphasises that it is particularly important” to clarify the extent of applicability of the Convention in States where the principle of ‘self-execution’ applies and others where it is claimed that the Convention ‘has constitutional status’ or has been incorporated into domestic law”. Furthermore, in paragraph 24, the OHCHR stresses that the execution obligations under the Convention also include making effective national remedies available:
“For rights to have meaning, effective remedies must be available to redress violations. This requirement is implicit in the Convention and consistently referred to in the other six major international human rights treaties.”
(122) In connection with the incorporation of the CRC the Ministry emphasised in Proposition to the Odelsting no. 45 (2002-2003) page 25 the following:
“Incorporation of the CRC is the incorporation method that gives the strongest signal effect at national as well as international level. By incorporating the CRC, Norwegian authorities show clearly that Norway is taking the Convention seriously and that, formally speaking, we satisfy the requirements of the Convention. This may be an advantage for Norway’s international human rights work aimed at children. It will be easier to stipulate requirements vis-à-vis other states when we have ourselves incorporated the Convention, thereby making it directly applicable in Norwegian law. By incorporating the CRC Norway also follows up on the OHCHR’s specific requirements on this point.”
(123) The CRC was thus meant to be “directly applicable”. And on page 25 of the proposition the Ministry assumed that it would be given effect “on a par with the already incorporated human rights conventions” and be accorded «the same formal legal position« as these. The Ministry did not want “an unfortunate distinction between the already incorporated conventions and children’s conventions” that might “be perceived as a signal that the CRC is not as important as these”. On page 57 of the Proposition, the Ministry specifically emphasised that the incorporation would make the CRC “appear in itself as a catalogue of rights in Norwegian law”.
(124) It is an established fact that in this connection the problems relating to “self-execution”, cf. Proposition to the Odelsting No. 45 (2002-2003) pages 16 and 26, cf. also Recommendation to the Odelsting No. 92 (2002-2003) page 3, were known. But nevertheless, no reservations were made with regard to the fact that certain Convention provisions were not to have any immediate effect under domestic law. On the contrary, the Convention was in its entirety to have the force of Norwegian law. This also comprises article 3 (1).
(125) I do not rule out that as far as the rights in the Convention that are of an economic, social or cultural nature are concerned, it is necessary to link the execution closer to supplementary national bases in law, cf. the CRC article 4 2nd sentence and Rt-2001-1006, page 1015. However, there is no basis for such limitations as regards article 3 (1), certainly not in the context with which our case is concerned. I would add that the requirement for a legal interest in section 1-3 of the Disputes Act will comprise legal actions where the interpretation and application of article 3 (1) of the CRC may perhaps not be suited for a separate decision.
(126) In this light, it is my opinion that a judgment can be rendered to the effect that article 3 (1) of the CRC has been violated, in line with what was established in Rt-2011-1666 paragraph 32 as the general and established system for the incorporated human rights conventions.
(127) The family A had to leave the country in March 2012, and has not been able to return. Accordingly, they have a legal interest in an assessment of the question as to whether the removal was in conformity with article 3 (1) of the CRC.
(128) The point of departure for the assessment is the situation as it was in March 2012, when the family was removed. C was eight and a half years old. It is natural to assume that her connection with Norway at that time was even stronger than when the Immigration Appeals Board made its last decision, approximately one and a half years earlier. However, it has not been documented that the Immigration Appeals Board conducted a new and formalised assessment of C’s situation in connection with the removal. Nor was she heard, as article 12 of the CRC requires.
(129) I have concluded that the decision not to reverse the refusal of the application for a residence permit for the family C is invalid. The rationale for the refusal is uncertainty as to whether the Immigration Appeals Board used the correct norm for balancing the conflicting interests and whether it regarded C’s best interests as such a primary a consideration as required by article 3 (1) of the CRC. It is not in accordance with article 3 (1) to let such a decision form the basis for a removal. The breach of the Convention is aggravated by the fact that in connection with the removal a renewed and overall assessment of C’s situation, where also she was heard, was not formalised.
(130) In this light a judgment should be delivered to the effect that the removal constituted a violation of article 3 (1) of the CRC.
(140) There is in my opinion no reason to discriminate between the CRC, the ECHR and the International Covenant on Civil and Political Rights (ICCPR) in the question as to the right to obtain a declaratory judgment. The CRC has no explicit provision about the right to an effective remedy, but a loyal compliance with the Convention obligations suggests that anyone who feels that the rights under the Convention are/have been violated must be allowed to have this tried.
(141) In my view, article 3 (1) of the CRC gives the child – as a correlate to the principle that the administrative authority shall treat the child’s best interests as a primary consideration – a claim in law for such an assessment in actual fact being conducted, as well as the norm of the Convention being respected in the actual evaluation. I have therefore reached the conclusion that a legal action concerning a violation of article 3 (1) of the CRC satisfies the condition in section 1-3 no. 1 of the Disputes Act that there must be a “claim in law”.
(143) As regards the concrete evaluation of the question as to whether the norm of the Convention has been satisfied in connection with the removal, this will have to be undertaken within the same parameters for a judicial review as those applicable to a review of the decision not to grant a residence permit. On this point I refer to paragraph 40 of the first-voting judge’s vote. The evaluation must be based on the situation at the time of removal.
(144) The removal of C is based on the decision of 15 December 2010. As has already come to light, the decision satisfies in my view the CRC’s requirement that the child’s best interests shall be a primary consideration. With such a point of departure the evaluation that must be made in connection with the removal can be limited to a review of whether the situation has changed significantly. The decision was implemented 1 year and 3 months after it was made. As a basis for the submission of a violation of the Convention the appellants have not pointed out any other factors than the time element and that during the period of time until the removal the child had developed a further attachment to Norway.
(146) In the light of the above, the court must find for the State in the question as to whether the removal of C violates article 3 (1) of the CRC.
CRIN believes this decision is inconsistent with the CRC. All rights enshrined in the Convention are justiciable and States must ensure that effective remedies are available to redress violations, as clearly stated by the UN Committee on the Rights of the Child in its General Comment No 5 on general measures of implementation of the CRC.
HR-2012-02399-P (case no. 2012/1042), civil action, appeal against a judgment.
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